No. 02-10360-JJ

IN THE UNITED STATES COURT OF APPEALSFOR THE ELEVENTH CIRCUIT

_______________

ASSOCIATION FOR DISABLED AMERICANS, et al.,

Plaintiffs - Appellants

v.

FLORIDA INTERNATIONAL UNIVERSITY,

Defendant - Appellee________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF FLORIDA

________________

CORRECTED SUPPLEMENTAL BRIEF FOR THE UNITED STATES AS INTERVENOR

________________

R. ALEXANDER ACOSTA Assistant Attorney General

JESSICA DUNSAY SILVERSARAH E. HARRINGTON Attorneys Department of Justice Civil Rights Division Appellate Section - PHB 5020 950 Pennsylvania Avenue, N.W. Washington, DC 20530 (202) 305-7999

Association for Disabled Americans v. FIUNo. 02-10360

CERTIFICATE OF INTERESTED PERSONSAND CORPORATE DISCLOSURE STATEMENT

Counsel for Intervenor United States of America hereby certifies, in

accordance with F.R.A.P. 26.1 and 11th Cir. R.26.1-1, that the following persons

may have an interest in the outcome of this case:

R. Alexander Acosta, Assistant Attorney General

Association For Disabled Americans, Inc., Plaintiff

Thurbert E. Baker, Attorney General of Georgia, Counsel for Defendant in

Appeal No. 02-10168

Bilzin Sumberg Dunn Baena Price & Axelrod, Counsel for Defendant

Ralph F. Boyd, Jr., former Assistant Attorney General

Lawrence L. Bracken II, Counsel for Plaintiff in Appeal No. 02-10168

J. Brady, Defendant in Appeal No. 02-10168

Steve Brother, Plaintiff

Michelle Calderon, Plaintiff

Phil Cannon, Counsel for Defendant in Appeal No. 02-10168

William Nicholas Charouhis, William N. Charouhis & Associates, Counsel

for Plaintiffs

Sherril May Colombo, Counsel for Defendant

Avant Edenfield, Judge, United States District Court for the Southern

District of Georgia, district court judge in Appeal No. 02-10168

Florida International University, Defendant

Seth M. Galanter, formerly Counsel for United States

Wayne Garner, Defendant, Georgia Department of Corrections, in Appeal

No. 02-10168

Georgia Department of Corrections, Defendant in Appeal No. 02-10168

Tony Goodman, Plainitff in Appeal No. 02-10168

James Ellis Graham, U.S. Magistrate Judge, Southern District of Georgia,

Appeal No. 02-10168

Sarah E. Harrington, Counsel for United States

Sgt. Lionel Harris, Defendant, Georgia Department of Corrections, in

Appeal No. 02-10168

John C. Jones, Senior Assistant Attorney General for Georgia, Counsel for

Defendant in Appeal No. 02-10168

The Honorable Adalberto Jordan, United States District Court for the

Southern District of Florida

Ofc. R. King, Defendant, Georgia Department of Corrections, in Appeal No.

02-10168

David E. Langford, Assistant Attorney General for Georgia, Counsel for

Defendant in Appeal No. 02-10168

Kathleen Pacious, Deputy Attorney General for Georgia, Counsel for

Defendant in Appeal No. 02-10168

Margaret Patterson, Defendant, Georgia Department of Corrections, in

Appeal No. 02-10168

C-2 of 3

O.T. Ray, Defendant, Georgia Department of Corrections, in Appeal No.

02-10168

Jorge Luis Rodriguez, Plaintiff

Johnny Sikes, Defendant, Georgia Department of Corrections, in Appeal

No. 02-10168

Jessica Dunsay Silver, Counsel for United States

Officer Whimbly, Defendant, Georgia Department of Corrections, in Appeal

No. 02-10168

Mitchell Edward Widom, Counsel for Defendant

C-3 of 3

STATEMENT REGARDING ORAL ARGUMENT

Because this appeal will require this Court to adjudicate the constitutional

validity of an Act of Congress, the United States believes oral argument would be

appropriate and helpful.

TABLE OF CONTENTS

PAGE

STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I. Constitutional Rights At Stake . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

II. Historical Predicate Of Unconstitutional Disability

Discrimination In Public Services . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

A. History Of Disability Discrimination In Public Education . . . 9

1. Record Of Exclusion From Education . . . . . . . . . . . . . 11

2. Record Of Discriminatory Treatment

Within Schools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

3. Record Of Educational Segregation . . . . . . . . . . . . . . 18

4. Record Of Physical Mistreatment . . . . . . . . . . . . . . . . 19

B. Gravity Of Harm Of Disability Discrimination In

Public Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

III. As Applied To Discrimination In Education, Title II Is

Congruent And Proportional To The Constitutional Rights

At Issue And The History Of Discrimination . . . . . . . . . . . . . . . . . . 21

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

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TABLE OF CITATIONS

CASES PAGE

Alexander v. Choate, 469 U.S. 287 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Baird ex rel. Baird v. Rose, 192 F.3d 462 (4th Cir. 1999) . . . . . . . . . . . . . . . . . . 19

Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . 20

Board of Educ. v. Cooperman, 507 A.2d 253 (N.J. Super. Ct. App. Div. 1986) . . . . . . . . . . . . . . . . . . . . . 15

Board of Educ. v. Rowley, 458 U.S. 176 (1982) . . . . . . . . . . . . . . . . . . . . . . . . 9, 29

Board of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) . . . . . . . . . . passim

Brown v. Board of Educ., 347 U.S. 483 (1954) . . . . . . . . . . . . . . . . . . . . . . passim

Chalk v. United States Dist. Ct. Cent. Dist., 840 F.2d 701 (9th Cir. 1988) . . . . . 14

City of Boerne v. Flores, 521 U.S. 507 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) . . . . . . . . . 7, 9, 28

County of Sacramento v. Lewis, 523 U.S. 833 (1998) . . . . . . . . . . . . . . . . . . . . . . 7

Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036 (5th Cir. 1989) . . . . . . . . . . . . 18

District 27 Cmty. Sch. Bd. v. Board of Educ., 502 N.Y.S.2d 325 (N.Y. Sup. Ct. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Doe v. Belleville Pub. Sch. Dist. No. 118, 672 F. Supp. 342 (S.D. Ill. 1987) . . . 14

Doe v. Dolton Elem. Sch. Dist. No. 148, 694 F. Supp. 440 (N.D. Ill. 1988) . . . . 14

Gaston County v. United States, 395 U.S. 285 (1969) . . . . . . . . . . . . . . . . . . . . . 27

Goss v. Lopez, 419 U.S. 565 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Greer v. Rome City Sch. Dist., 950 F.2d 688 (11th Cir. 1991) . . . . . . . . . . . . 18-19

Grutter v. Bollinger, 539 U.S. 306 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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CASES (continued): PAGE

Hairston v. Drosick, 423 F. Supp. 180 (S.D. W. Va. 1976) . . . . . . . . . . . . . . 15, 18

Harrison v. Michigan, 350 F. Supp. 846 (E.D. Mich. 1972) . . . . . . . . . . . . . . . . 15

Honig v. Doe, 484 U.S. 305 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 22

Jefferson v. Ysleta Indep. Sch. Dist., 817 F.2d 303 (5th Cir. 1987) . . . . . . . . . . . . 7

Johnston v. Ann Arbor Pub. Schs., 569 F. Supp. 1502 (E.D. Mich. 1983) . . . . . 19

Katzenbach v. Morgan, 384 U.S. 641 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) . . . . . . . . . . . . . . . . . . . . . . . 3

Martinez v. School Bd., 861 F.2d 1502 (11th Cir. 1988) . . . . . . . . . . . . . . . . . . . 14

Mills v. Board of Educ., 348 F. Supp. 866 (D.D.C. 1972) . . . . . . . . . . . . . . . . . . 14

Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982) . . . . . . . . . . . . . . . 27

Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721 (2003) . . . . . . . . . 21, 25-26

New York State Ass’n for Retarded Children, Inc. v. Carey, 466 F. Supp. 487 (E.D.N.Y. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999) . . . . . . . . . . . . . . . . . . . . 28

Oregon v. Mitchell, 400 U.S. 112 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Palmore v. Sidoti, 466 U.S. 429 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7

Pennsylvania Ass’n for Retarded Children v. Pennsylvania, 334 F. Supp. 1257 (E.D. Pa. 1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-15

Plyler v. Doe, 457 U.S. 202 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 20, 29

Ray v. School Dist., 666 F. Supp. 1524 (M.D. Fla. 1987) . . . . . . . . . . . . . . . . . . 14

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CASES (continued): PAGE

Robertson v. Granite City Cmty. Unit Sch. Dist. No. 9, 684 F. Supp. 1002 (S.D. Ill. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Romer v. Evans, 517 U.S. 620 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Roncker v. Walter, 700 F.2d 1058 (6th Cir.), cert. denied, 464 U.S. 864 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Shapiro v. Thompson, 394 U.S. 618 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

South Carolina v. Katzenbach, 383 U.S. 301 (1966) . . . . . . . . . . . . . . . . . . . . . . 27

State v. Board of Educ., 172 N.W. 153 (Wis. 1919) . . . . . . . . . . . . . . . . . . . . 17, 29

Tennesee v. Lane, 124 S. Ct. 1978 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Thomas v. Atascadero Unified Sch. Dist., 662 F. Supp. 376 (C.D. Cal. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-14

United States v. Virginia, 518 U.S. 515 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Wilson v. Marana Unified Sch. Dist. No. 6, 735 F.2d 1178 (9th Cir. 1984) . . . . 19

Wisconsin v. Yoder, 406 U.S. 205 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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CONSTITUTION AND STATUTES: PAGE

Eleventh Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passimFourteenth Amendment

Section 1 Due Process Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Equal Protection Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Section 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4, 19, 22

Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101 et seq., 42 U.S.C. 12101(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 11

42 U.S.C. 12101(a)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

42 U.S.C. 12101(a)(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

42 U.S.C. 12131-12165 (Title II) . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

42 U.S.C. 12132 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Carl D. Perkins Vocational Education Act of 1984, Pub. L. No. 98-524, 98 Stat. 2435 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22-23

Education Amendments of 1974, Pub. L. No. 93-380, 88 Stat. 484 . . . . . . . . . . 22

Education for All Handicapped Children Act of 1975 (EHA), Pub. L. No. 94-142, 89 Stat. 773 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Education of the Handicapped Act Amendments of 1986, Pub. L. No. 99-457, 100 Stat. 1145 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Education of the Handicapped Act Amendments of 1983, Pub. L. No. 98-199, 97 Stat. 1357 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Education of the Handicapped Act of 1975 (EHA), 84 Stat. 175 . . . . . . . . . . . . . 10

Elementary and Secondary Education Amendments Act of 1965, Pub. L. No. 89-10, 79 Stat. 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

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FEDERAL STATUTES (continued): PAGE

Elementary and Secondary Education Amendments of 1966, Pub. L. No. 89-750, 80 Stat. 1191 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Handicapped Children’s Protection Act of 1986, Pub. L. No. 99-372, 100 Stat. 796 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq. . . . . . . . . . . 23

Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355 . . . . . . . . . . . . . . . 22

20 U.S.C. 1400(c)(2)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

28 U.S.C. 2403(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATE STATUTES:

Act of May 18, 1965, ch. 584, 1965 N.C. Sess. Law. 643 . . . . . . . . . . . . . . . . . . 10

Act of Mar. 3, 1921, ch. 235, 1921 S.D. Sess. Laws 344 . . . . . . . . . . . . . . . . . . . 10

Act of Feb. 21, 1917, ch. 354, §5, 1917 Or. Laws 740 . . . . . . . . . . . . . . . . . . . . . 10

Act of June 21, 1906, ch. 508, §12, 1906 Mass. Acts & Resolves 707 . . . . . . . . 10

Ala. Code §21-1-10 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Iowa Code Ann. § 299.18 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Mont. Code Ann. §§38-801, 38-802 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Ohio Rev. Code Ann. §3325.02 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Okla. Stat. Ann. tit. 70, § 1744 (West 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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LEGISLATIVE HISTORY: PAGE

Commission on the Education of the Deaf’s Report to Congress: Hearing Before the Subcomm. on the Handicapped of the Senate Comm. on Labor and Human Resources, 100th Cong., 2d Sess. (1988) . . . . . . . . . . 13

Education for All Handicapped Children, 1973-1974: Hearings Before theSubcomm. on the Handicapped of the Senate Comm. on Labor and Public Welfare, 93d Cong., 1st Sess. (1973) . . . . . . . . . . . . . . . . . . . . 13, 25

GAO, Briefing Reports on Costs of Accommodations, Americans with Disabilities Act: Hearing Before the House Comm. on Small Business, 101st Cong., 2d Sess. (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Hearing on the Commission on Education of the Deaf and Special EducationPrograms: Hearing Before the Subcomm. on Select Education of the House Comm. on Education and Labor, 100th Cong., 2d Sess. (1988) . . 11

H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d Sess. (1990) . . . . . . . . . . . . . . . . . . . . 24

S. Rep. No. 116, 101st Cong., 1st Sess. (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Staff of the House Comm. on Education and Labor, 101st Cong., 2d Sess.,Legislative History of Public Law 101-336: The Americans withDisabilities Act (Comm. Print 1990) . . . . . . . . . . . . . . . . . . . . . . . 15-17, 25

136 Cong. Rec. 2471 (May 17, 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

OTHER AUTHORITIES:

Frederick J. Weintraub & Alan R. Abeson, Appropriate Education for All Handicapped Children: A Growing Issue 23 Syracuse L. Rev. 1037 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

National Council on Disability, Back to School on Civil Rights: Advancing the Federal Commitment to Leave No Child Behind (2000) . . . . . . . . . . . 18

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OTHER AUTHORITIES (continued) : PAGE

National Council on the Handicapped, On the Threshold of Independence (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-12

Office of the Att’y Gen., Cal. Dep’t of Justice, Attorney General’s Commission on Disability: Final Report (1989) . . . . . . . . . . . . . . . . . . . . 16

Philip T.K. Daniel, Educating Students with Disabilities in the Least

Restrictive Environment: A Slippery Slope for Educators,

35 J. of Educ. and Admin. 397 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

T. Cook, The Americans with Disabilities Act: The Move to Integration,

64 Temple L. Rev. 393 (1991 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

U.S. Civil Rights Comm’n, Accomodating the Spectrum of Individual

Abilities (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 18, 29

REGULATIONS:

28 C.F.R. 35.151 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

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STATEMENT OF JURISDICTION

The United States concurs with plaintiff’s statement of jurisdiction.

STATEMENT OF THE ISSUE

Whether the statutory provision removing Eleventh Amendment immunity

for suits under Title II of the Americans with Disabilities Act, 42 U.S.C. 12131 et

seq., is a valid exercise of Congress’s authority under Section 5 of the Fourteenth

Amendment, as applied to the class of cases implicating access to educational

services.

STATEMENT OF THE CASE

This appeal involves a suit filed under Title II of the Americans with

Disabilities Act (ADA). The defendant asserted Eleventh Amendment immunity

to the plaintiffs’ claims under the ADA, and the district court dismissed the claims

on that ground. The plaintiff appealed and the United States intervened on appeal

pursuant to 28 U.S.C. 2403(a) to defend the constitutionality of the abrogation of

Eleventh Amendment immunity in Title II of the ADA. Pursuant to this Court’s

order of June 7, 2004, the United States offers this brief addressing the

applicability of the Supreme Court’s decision in Tennessee v. Lane, 124 S. Ct.

1978 (2004), to the issues in this case.

SUMMARY OF ARGUMENT

Viewed in light of the teachings and example of Tennessee v. Lane, 124 S. Ct.

1978 (2004), Title II of the Americans with Disabilities Act is valid Fourteenth

Amendment legislation as applied to cases implicating access to educational services.

In Lane, the Court found that “Congress enacted Title II against a backdrop of

pervasive unequal treatment in the administration of state services and programs,

-2-

including systematic deprivations of fundamental rights.” Id. at 1989. That history

of unconstitutional discrimination, the Court held, authorized Congress to enact

prophylactic legislation to address “public services,” generally, including educational

services. See id. at 1992. Indeed, the evidence of unconstitutional discrimination in

education was overwhelming, including outright exclusion of disabled children from

schools (over 1 million in 1975) and a broad range of discriminatory treatment within

schools, evincing reliance on irrational stereotypes and even outright hostility toward

people with disabilities.

Title II, as it applies to education, is a congruent and proportionate response

to that record. Title II is carefully tailored to respect the State’s legitimate interests

while protecting against the risk of unconstitutional discrimination in education and

remedying the lingering legacy of discrimination against people with disabilities in

education. Thus, Title II often applies in public education to prohibit directly

discrimination based on hidden invidious animus that would be difficult to detect or

prove directly. The statute also establishes reasonable uniform standards for treating

requests for accommodations in public schools where unfettered discretionary

decision-making has, in the past, led to irrational and invidious decisions. In

requiring reasonable steps toward making school facilities physically accessible, Title

II responds to the lingering effects of a long history of exclusion of people with

disabilities from schools. Moreover, in integrating students with disabilities among

their peers, Title II acts to relieve the ignorance and stereotypes it found at the base

of discrimination in education.

These limited prophylactic and remedial measures, judged against the backdrop

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of pervasive unconstitutional discrimination that Congress found exists both in public

education and in other areas of governmental services, represent a good faith effort to

make meaningful the guarantees of the Fourteenth Amendment, not an illicit attempt

to rewrite them. Accordingly, Congress validly abrogated the State’s sovereign

immunity to plaintiff’s claims regarding access to public education in this case.

ARGUMENT

UNDER THE ANALYSIS OF TENNESSEE V. LANE, TITLE II IS VALIDFOURTEENTH AMENDMENT LEGISLATION AS APPLIED IN THE

CONTEXT OF PUBLIC EDUCATION

Although the Eleventh Amendment ordinarily renders the States immune from

suits in federal court by private citizens, Congress may abrogate the States’ immunity

if it “unequivocally expressed its intent to abrogate that immunity,” Kimel v. Florida

Bd. of Regents, 528 U.S. 62, 73 (2000), and acts “pursuant to a valid exercise of its

power under § 5 of the Fourteenth Amendment to enforce the substantive guarantees

of that Amendment,” Tennessee v. Lane, 124 S. Ct. 1978, 1985 (2004).

In its prior brief, the State argued that the substantive requirements of Title II

were beyond Congress’s Fourteenth Amendment authority. The Supreme Court

addressed that contention in Tennessee v. Lane, holding that “Title II, as it applies to

the class of cases implicating the fundamental right of access to the courts, constitutes

a valid exercise of Congress’ § 5 authority to enforce the guarantees of the Fourteenth

Amendment.” Id. at 1994. To reach this conclusion, the Court applied the three-part

analysis for Fourteenth Amendment legislation created by City of Boerne v. Flores,

521 U.S. 507 (1997). The Court considered (1) the “constitutional right or rights that

1 The Court in Lane did not examine the congruence and proportionality of TitleII as a whole because the Court found that the statute was valid Section 5legislation as applied to the class of cases before it. Because Title II is validSection 5 legislation as applied to the class of cases implicating students’ rights,this Court need not consider the validity of Title II as a whole. The United Statescontinues to maintain, however, that Title II as a whole is valid Section 5legislation because it is congruent and proportional to Congress’s goal of

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Congress sought to enforce when it enacted Title II,” Lane, 124 S. Ct. at 1988; (2)

whether there was a history of unconstitutional disability discrimination to support

Congress’s determination that “inadequate provision of public services and access to

public facilities was an appropriate subject for prophylactic legislation,” id. at 1992;

and (3) “whether Title II is an appropriate response to this history and pattern of

unequal treatment,” as applied to the class of cases implicating access to judicial

services. Ibid.

With respect to the first question, the Court found that Title II enforces rights

under the Equal Protection Clause as well as an array of rights subject to heightened

constitutional scrutiny under the Due Process Clause of the Fourteenth Amendment.

With respect to the second question, the Court conclusively found a sufficient

historical predicate of unconstitutional disability discrimination in the provision of

public services to justify enactment of a prophylactic remedy pursuant to Congress’s

authority under Section 5 of the Fourteenth Amendment. And finally, with respect

to the third question, the Court found that the congruence and proportionality of the

remedies in Title II should be judged on a category-by-category basis in light of the

particular constitutional rights at stake in the relevant category of public services.1

eliminating discrimination on the basis of disability in the provision of publicservices – an area that the Supreme Court in Lane determined is an “appropriatesubject for prophylactic legislation” under Section 5. Lane, 124 S. Ct. at 1992.

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Applying the holding of Lane, this Court should conclude that Title II is

validFourteenth Amendment Legislation as it applies in the context of public

education.

I. Constitutional Rights At Stake

As discussed in Part B, when Congress enacted the ADA, it had before it

evidence of a widespread pattern of exclusion of children with disabilities from

public schools and discrimination within schools, much of which reflected irrational

stereotypes and hostility toward people with disabilities. Such treatment is subject

to rational basis review under the Equal Protection Clause, which prohibits arbitrary

treatment based on irrational stereotypes or hostility.

Although classifications relating to education only involve rational basis

review under the Equal Protection Clause, public education is not “merely some

governmental ‘benefit’ indistinguishable from other forms of social welfare

legislation.” Plyler v. Doe, 457 U.S. 202, 221 (1982). “Both the importance of

education in maintaining our basic institutions, and the lasting impact of its

deprivation on the life of the child, mark the distinction.” Ibid. Indeed, the Court has

long recognized that “education is perhaps the most important function of state and

local governments” because “it is doubtful that any child may reasonably be expected

to succeed in life if he is denied the opportunity of an education.” Brown v. Board

of Educ., 347 U.S. 483, 493 (1954). Beyond the importance of education to the

individual, the Court recognized “early in our history, that some degree of education

is necessary to prepare citizens to participate effectively and intelligently in our open

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political system if we are to preserve freedom and independence.” Wisconsin v.

Yoder, 406 U.S. 205, 221 (1972).

In the modern age, the importance of access to education extends to the

university as well. In considering access to a college education, the Court recently

reaffirmed “the overriding importance of preparing students for work and citizenship”

and described “education as pivotal to sustaining our political and cultural heritage

with a fundamental role in maintaining the fabric of society.” Grutter v. Bollinger,

539 U.S. 306, 331 (2003) (internal quotation marks omitted). “This Court has long

recognized that education is the very foundation of good citizenship.” Ibid. (quoting

Brown, 347 U.S. at 493) (internal punctuation omitted). For this reason, the Court

explained, “[e]nsuring that public [educational] institutions are open and available to

all segments of American society * * * represents a paramount government

objective.” Id. at 331-332.

Of course, a State “may legitimately attempt to limit its expenditures” for

public education. Shapiro v. Thompson, 394 U.S. 618, 633 (1969). “But a State may

not accomplish such a purpose by invidious distinctions between classes of its

citizens.” Ibid. Such invidious distinctions include discrimination against the

disabled based on “[m]ere negative attitudes, or fear” alone, Board of Trs. of Univ.

of Ala. v. Garrett, 531 U.S. 356, 367 (2001), for even rational basis scrutiny is not

satisfied by irrational fears or stereotypes, see ibid., and simple “animosity” towards

the disabled is not a legitimate state purpose, see Romer v. Evans, 517 U.S. 620, 634

(1996). By the same token, a State may not treat individuals with disabilities in a way

that simply gives effect to private invidious discrimination. See Palmore v. Sidoti,

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2 Discrimination in education can also implicate the Due Process Clause. “[T]heState is constrained to recognize a student’s legitimate entitlement to a publiceducation as a property interest which is protected by the Due Process Clause.” Goss v. Lopez, 419 U.S. 565, 574 (1975). Accordingly, suspension and expulsiondecisions must be made in accordance with the basic due process requirement ofnotice and an opportunity to be heard. Id. at 579. As made clear in Lane, publicentities may be required to take steps to ensure that people with disabilities areafforded the same meaningful opportunity to be heard as others. See 124 S. Ct. at1994. In addition, students have a substantive right under the Due Process Clauseto be free from government conduct that is “arbitrary in the constitutional sense.” County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). See, e.g., Jefferson v.Ysleta Indep. Sch. Dist., 817 F.2d 303 (5th Cir. 1987) (due process violated whenstudent tied to a chair and not allowed to use the bathroom for most of schoolday).

466 U.S. 429, 433 (1984).

And while it is generally true that States are not required by the Equal

Protection Clause “to make special accommodations for the disabled,” this is true

only “so long as their actions toward such individuals are rational.” Garrett, 531 U.S.

at 367. Moreover, a purported rational basis for treatment of the disabled will fail if

the State does not accord the same treatment to other groups similarly situated. See

id. at 366 n.4; City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 447-450

(1985).2

II. Historical Predicate Of Unconstitutional Disability Discrimination In Public

Services

In Lane, the Court reviewed the evidence and concluded that “Congress

enacted Title II against a backdrop of pervasive unequal treatment in the

administration of state services and programs, including systematic deprivations of

fundamental rights.” 124 S. Ct. at 1989. The Court remarked on the “sheer volume

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3 In describing the adequacy of the historical predicate, the Court also spoke ingeneral terms, remarking, for instance, on “the sheer volume of evidencedemonstrating the nature and extent of unconstitutional discrimination againstpersons with disabilities in the provision of public services.” Id. at 1991(emphasis added). In concluding that the “the record of constitutional violationsin this case * * * far exceeds the record in Hibbs,” id. at 1992, the Courtspecifically referred to the record of “exclusion of persons with disabilities fromthe enjoyment of public services,” ibid. (emphasis added), rather than to the recordof exclusion from judicial services in particular. See also ibid. (relying oncongressional finding in 42 U.S.C. 12101(a)(3) and italicizing phrase “access topublic services” rather than specific examples of public services listed in the

of evidence demonstrating the nature and extent of unconstitutional discrimination

against persons with disabilities in the provision of public services,” id. at 1992, and

concluded that it is “clear beyond peradventure that inadequate provision of public

services and access to public facilities was an appropriate subject for prophylactic

legislation,” ibid.

Although Lane ultimately upheld Title II as valid Fourteenth Amendment

legislation only as applied to access to courts, its conclusions regarding the historical

predicate for Title II are not limited to that context. The Court did not begin its “as-

applied” analysis until it reached the third step of the Boerne analysis addressing the

Act’s congruence and proportionality. See 124 S. Ct. at 1992-1993. At the second

step, the Court considered the record supporting Title II in all its applications and

found not only “a pattern of unconstitutional treatment in the administration of

justice,” id. at 1990, but also violations of constitutional rights in the context of

voting, marriage, jury service, zoning, the penal system, public education, law

enforcement, and the treatment of institutionalized persons, id. at 1989.3 That record,

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finding).

4 See Philip T.K. Daniel, Educating Students with Disabilities in the LeastRestrictive Environment: A Slippery Slope for Educators, 35 J. of Educ. andAdmin. 397, 398 (1997).

the Court concluded, supported prophylactic legislation to address discrimination in

“public services,” id. at 1992, including discrimination in “education,” ibid. See also

id. at 1989 (finding a “pattern of unequal treatment in the administration of a wide

range of public services * * * including * * * public education”). Thus, the adequacy

of Title II’s historical predicate to support prophylactic legislation is no longer open

to dispute. But even if it were, there is ample evidence of a history of

unconstitutional discrimination against individual with disabilities in public

education.

A. History Of Disability Discrimination In Public Education

Children with mental disabilities were labeled “ineducable” and categorically

excluded from public schools to “protect nonretarded children from them.” City of

Cleburne, 473 U.S. at 463 (Marshall, J., concurring in the judgment in part); see also

Board of Educ. v. Rowley, 458 U.S. 176, 191 (1982) (“many of these children were

excluded completely from any form of public education”). Even in the relatively

recent past, many States permitted school administrators to exclude from school

children who, in their opinion, “would not benefit” from education.4 In 1965, North

Carolina criminalized any subsequent attempt by parents to send their excluded child

to school. See Act of May 18, 1965, ch. 584, 1965 N.C. Sess. Law. 643. Some States

also required school officials and parents to report disabled children for

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5 See e.g., Act of Mar. 3, 1921, ch. 235, 1921 S.D. Sess. Laws 344; Act of Feb.21, 1917, ch. 354, §5, 1917 Or. Laws 740; Act of June 21, 1906, ch. 508, §12,1906 Mass. Acts & Resolves 707.

6 See, e.g., Ala. Code §21-1-10 (1975); Iowa Code Ann. § 299.18 (1983); OhioRev. Code Ann. §3325.02 (2002); Okla. Stat. Ann. tit. 70, § 1744 (West 1990); seealso Tex. Code Ann. § 3260 (West 1990) (establishing “State Hospital forCrippled and Deformed Children”); Mont. Code Ann. §§38-801, 38-802 (1961)(establishing a school “for the education, training and detention of subnormalminors and adults and epileptics” who “from social standards, are a menace tosociety”).

institutionalization5 or enrollment in special segregated schools.6

When Congress studied disability discrimination in education in the mid-

1970s, it found continuing wholesale exclusion of disabled students from the public

schools. Congress’s findings, which led to passage of the Education of the

Handicapped Act of 1975 (EHA), 84 Stat. 175, were later described by the Supreme

Court:

When the [EHA] was passed in 1975, Congress had before it ampleevidence that such legislative assurances were sorely needed: 21 yearsafter this Court declared education to be “perhaps the most importantfunction of state and local governments,” congressional studies revealedthat better than half of the Nation’s 8 million disabled children was notreceiving appropriate educational services. Indeed, one out of everyeight of these children were excluded from the public school altogether;many others were simply “warehoused” in special classes or wereneglectfully shepherded through the system until they were old enoughto drop out.

Honig v. Doe, 484 U.S. 305, 309 (1988) (citations omitted). Thus, the legislative

findings of the EHA described that as late as 1975, and despite prior federal efforts,

“1,000,000 of the children with disabilities in the United States were excluded

entirely from the public school system.” 20 U.S.C. 1400(c)(2)(C).

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7 See also Hearing on the Commission on Education of the Deaf and SpecialEducation Programs: Hearing Before the Subcomm. on Select Education of theHouse Comm. on Education and Labor, 100th Cong., 2d Sess. 3 (1988) (statement

A decade later, during investigations which led to the passage of the ADA,

Congress found that “discrimination against individuals with disabilities persists in

such critical areas as * * * education,” 42 U.S.C. 12101(a)(3), and that, as a result,

“people with disabilities, as a group, occupy an inferior status in our society, and are

severely disadvantaged socially, vocationally, economically, and educationally,” 42

U.S.C. 12101(a)(6).

Those statutory findings were amply supported by evidence not only of

widespread exclusion of disabled students from education altogether, but also

repeated examples of irrational and invidious discrimination against those students

allowed to attend school.

1. Record Of Exclusion From Education

Congress was presented with substantial evidence that even years after the

passage of the EHA, tens of thousands of disabled children were still being excluded

from the public schools. See U.S. Civil Rights Comm’n, Accomodating the Spectrum

of Individual Abilities 28 n.77 (1983) (Spectrum). Extensive surveys further revealed

a dramatic educational gap between individuals with disabilities and the community

at large. Forty percent of persons with disabilities did not finish high school (triple

the rate for the general population), and only 29% had any college education

(compared with 48% for the population at large). National Council on the of

Handicapped, On the Threshold of Independence 14 (1988) (Threshold).7 This lack

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of Rep. Bartlett) (“Seventy percent of hearing impaired high school graduatescannot attend a post-secondary educational institution because their reading levelsare still at a second or third grade level.”).

8 Twenty percent of persons with disabilities had family incomes below thepoverty line (more than twice the percentage of the general population), and 15%of disabled persons had incomes of $15,000 or less. Threshold 13-14.

9 Two-thirds of all working-age persons with disabilities were unemployed; onlyone in four worked full-time. Threshold 14.

10 In Lane, the Court relied on the handwritten letters and commentaries collectedduring the Task Force’s forums, which were part of the official legislative historyof the ADA, lodged with the Court in Garrett, 531 U.S. 356, and catalogued inAppendix C to Justice Breyer’s dissent in that case. See Lane, 124 S. Ct. at 1990. That Appendix cites to the documents by State and Bates stamp number, 531 U.S.at 389-424, a practice we follow in this brief. The United States can provide thisCourt copies of the documents cited in this brief, or the entire four-volume set,upon request.

of educational attainment contributed to an “alarming rate of poverty”8 and a “Great

Divide” in employment9 for persons with disabilities. Ibid. Congress was also given

first-hand accounts illustrating these statistics, through testimony that often made

clear the invidious basis of the exclusionary practices. For example, one witness

testified that “[w]hen I was 5, my mother proudly pushed my wheelchair to our local

public school, where I was promptly refused admission because the principal ruled

that I was a fire hazard.” S. Rep. No. 116, 101st Cong., 1st Sess. 7 (1989). Another

person recounted that a state university declined to admit him to a graduate program,

explaining that “we have had disabled persons in this department before; it never

worked out well.” WI 1757.10 Indeed, the record is replete with examples of

discriminatory exclusion of disabled students from schools under circumstances that

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11 See UT 1556 (child denied admission to public school because first gradeteacher refused to teach him); AL 08 (child with cerebral palsy denied admissionto school); UT 1587 (third grade teacher refused to give student with disability anygrades, writing on the report card “[t]his child does not belong in public schools,he is a waste of tax payers money”); MS 999 (state university instructor refused toteach blind person); MI 920 (student denied admission to medical school becauseof speech impediment); NC 1144 (mentally handicapped student with no behaviorproblems denied admission to after-school program because “their policy was notto keep handicapped” kids); see also PA 1432 (a child who uses wheelchair,unable to enroll in first grade because the class was held in inaccessible classroom;school system proposed, instead, to enroll him in self-contained special educationclasses held in accessible room, even though the child had no mental impairment);Education for All Handicapped Children, 1973-1974: Hearings Before theSubcomm. on the Handicapped of the Senate Comm. on Labor and PublicWelfare, 93d Cong., 1st Sess. 384 (1973) (EHA Senate Hearings) (Peter Hickey)(student in Vermont was forced to attend classes with students two years behindhim because he could not climb staircase to attend classes with his peers);Commission on the Education of the Deaf’s Report to Congress: Hearing Beforethe Subcomm. on the Handicapped of the Senate Comm. on Labor and HumanResources, 100th Cong., 2d Sess. 15 (1988) (testimony of Gertrude S. Galloway,Chairperson, Precollege Programs Committee) (“[W]e found that many deafchildren are receiving inappropriate education or no education at all, that verysame problem that promoted passage of the EHA in the first place.”)

Congress could reasonably conclude often demonstrate invidious animus.11

This pattern of exclusion is also documented in numerous state and federal

cases. For example, in Lane, the Supreme Court specifically noted two cases in

which students with AIDS were excluded from the public schools. See 124 S. Ct. at

1989 n.12. In one, a seven-year old student with AIDS was confined to a modular

classroom where he was the only student. See Robertson v. Granite City Cmty. Unit

Sch. Dist. No. 9, 684 F. Supp. 1002 (S.D. Ill. 1988). In another, a kindergarten

student with AIDS was excluded from class and forced to take home tutoring. See

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12 See Martinez v. School Bd., 861 F.2d 1502 (11th Cir. 1988) (child with HIVexcluded from school); Chalk v. United States Dist. Ct. Cent. Dist., 840 F.2d 701(9th Cir. 1988) (certified teacher barred from teaching after diagnosis of AIDS);Doe v. Dolton Elem. Sch. Dist. No. 148, 694 F. Supp. 440 (N.D. Ill. 1988)(elementary student with AIDS excluded from attending regular classes orextracurricular activities); District 27 Cmty. Sch. Bd. v. Board of Educ., 502N.Y.S.2d 325 (N.Y. Sup. Ct. 1986) (two school boards sought to preventattendance of any student with AIDS in any school in the city, unless all of thestudents at that school had AIDS); Board of Educ. v. Cooperman, 507 A.2d 253,277 (N.J. Super. Ct. App. Div. 1986) (children with AIDS were excluded fromregular classroom attendance), aff’d as modified by 523 A.2d 655 (N.J. 1987); Rayv. School Dist., 666 F. Supp. 1524, 1528 (M.D. Fla. 1987) (children with HIVexcluded from school, despite health officials’ certification that children couldsafely attend school); Doe v. Belleville Pub. Sch. Dist. No. 118, 672 F. Supp. 342(S.D. Ill. 1987) (child with HIV excluded from school).

13 See, e.g., New York State Ass’n for Retarded Children, Inc. v. Carey, 466 F.Supp. 487 (E.D.N.Y. 1979) (mentally retarded students excluded from publicschool system); Hairston v. Drosick, 423 F. Supp. 180 (S.D. W. Va. 1976) (schoolrefused to admit child with spina bifida without the daily presence of her mother,even though student was of normal mental competence and capable of performingeasily in a classroom situation); Mills v. Board of Educ., 348 F. Supp. 866 (D.D.C.1972) (mentally retarded students excluded from public school system);Pennsylvania Ass’n for Retarded Children v. Pennsylvania, 334 F. Supp. 1257

Thomas v. Atascadero Unified Sch. Dist., 662 F. Supp. 376 (C.D. Cal. 1986).

Congress was specifically aware of cases like these. See, e.g., 136 Cong. Rec. 2471,

2480 (May 17, 1990) (Rep. Barnett) (discussing case of Ryan White, who had AIDS

and was excluded from school not because the school board “thought Ryan would

infect the others” but because “some parents were afraid he would”). There are many

other similar cases as well.12 Moreover, the examples in the case law of

discriminatory exclusion are not limited to cases involving children with HIV or

AIDS.13

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(E.D. Pa. 1971) (mentally retarded students excluded from public school system);Harrison v. Michigan, 350 F. Supp. 846, 847 (E.D. Mich. 1972) (“Until veryrecently the State of Michigan was making little effort to educate children who aresuffering from a variety of mental, behavioral, physical and emotional handicaps. Many children were denied education.”); see also Frederick J. Weintraub & AlanR. Abeson, Appropriate Education for All Handicapped Children: A GrowingIssue, 23 Syracuse L. Rev. 1037, 1042 (1972) (autistic child excluded from publicschools); ibid. (disabled student with low IQ but able to read and do basic mathexcluded from school as “unable to profit from school attendance”); id. at 1043(child with petit mal epilepsy, controlled through medication, refused admission topublic school).

2. Record Of Discriminatory Treatment Within Schools

Even when students with disabilities were permitted to attend school, students

faced treatment that Congress could reasonably conclude represented discrimination

based on invidious stereotypes or hostility toward people with disabilities. For

example, Congress heard of a student with spina bifida who was barred from the

school library for two years “because her braces and crutches made too much noise.”

EHA Senate Hearings at 400 (Mrs. Richard Walbridge). Another student testified

that at her “graduation from high school, the principal attempted to prevent me from

accepting an award in a ceremony on stage simply because I was in a wheelchair.”

S. Rep. No. 116, supra, at 7. Many other examples show actions based on the

continued assumption that children with disabilities were unworthy of, or unable to

benefit from, an education. Thus, one witness told Congress that “I was considered

too crippled to compete by both the school and my parents. In fact, the [segregated]

school never even took the time to teach me to write! * * * The effects of the school’s

failure to teach me are still evident today.” 2 Staff of the House Comm. on Education

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14 See, e.g., Office of the Att’y Gen., Cal. Dep’t of Justice, Attorney General’sCommission on Disability: Final Report 17, 81 (1989) (“A bright child withcerebral palsy is assigned to a class with mentally retarded and otherdevelopmentally disabled children solely because of her physical disability”; inone town, all children with disabilities are grouped into a single classroomregardless of individual ability); VT 1635-1636 (quadriplegic woman withcerebral palsy and a high intellect, who scored well in school, was branded“retarded” by educators, denied placement in a regular school setting, and placedwith emotionally disturbed children, where she was told she was “not collegematerial”); NE 1031 (school districts labeled as mentally retarded a blind child);AK 38 (school district labeled child with cerebral palsy, who subsequentlyobtained a Masters Degree, as mentally retarded).

and Labor, 101st Cong., 2d Sess., Legislative History of Public Law 101-336: The

Americans with Disabilities Act 989 (Comm. Print 1990) (Leg. Hist.) (Mary Ella

Linden). In another case, a witness with a hearing impairment described how her

teacher had pointed her out in class as example of the difference between children

with disabilities and others. NM 1090. When other children were told to put on their

“thinking-caps,” the witness recalled, “they would demonstrate – putting a cap on

their head. I was never allowed to put on a thinking-cap because I was the handicap

kid.” Ibid. The record also contains numerous examples of children with physical

impairments being placed in special education classes with mentally-impaired

students for no apparent reason other than the assumption that any disability

precludes receiving an education in a normal environment.14

Similar incidents illustrating irrational stereotypes and intolerance occurred at

the university level. One witness recalled that, “when I was first injured, my college

refused to readmit me” because “it would be ‘disgusting’ to my roommates to have

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15 Compare State v. Board of Educ., 172 N.W. 153, 153 (Wis. 1919) (excluding aboy with cerebral palsy from public school because he “produces a depressing andnauseating effect upon the teachers and school children”).

to live with a woman with a disability.” WA 1733.15 A student with epilepsy was

asked to leave a state college because her seizures were “disrupt[ive]” and, officials

said, created a risk of liability. Leg. Hist. 1162 (Barbara Waters). A doctor with

multiple sclerosis was denied admission to a psychiatric residency program because

the state admissions committee “feared the negative reactions of patients to his

disability.” Id. at 1617 (Arlene Mayerson). Similarly, a student with facial paralysis

was denied a teaching assignment based solely on her appearance. OR 1384. A state

university forced a blind student to drop music class because “you can’t see.” Leg.

Hist. 1224 (Denise Karuth). Conversely, in another case, a blind student was

discouraged from pursuing a degree in her chosen field of personnel management and

urged to pursue a degree in music instead. See MO 1010. Congress also heard that

a state commission refused to sponsor a blind student for a masters degree in

rehabilitation counseling because “the State would not hire blind rehabilitation

counselors, ‘[s]ince,’ and this is a quote: ‘they could not drive to see their clients.’”

Leg. Hist. 1225. A different state university denied a blind student a chance to

student teach, as required to obtain a teaching certificate, because the dean of the

school was “convinced that blind people could not teach in public schools.” SD

1476. See also J. Shapiro, No Pity 45 (1993) (Dean of the University of California

at Berkeley told a prospective student that “[w]e’ve tried cripples before and it didn’t

work”); MO 1010 (college instructor told blind student she did not think she could

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16 See, e.g., Hairston, 423 F. Supp. at 182 (child with spinobifida, who was “ofnormal mental competence” and “clearly physically able to attend school in aregular public classroom” excluded from local public school because she “was notwanted in the regular classroom”); Roncker v. Walter, 700 F.2d 1058 (6th Cir.)(mentally retarded children excluded from all contact with nondisabled children),cert. denied, 464 U.S. 864 (1983); Daniel R.R. v. State Bd. of Educ., 874 F.2d1036, 1050 (5th Cir. 1989) (same); Greer v. Rome City Sch. Dist., 950 F.2d 688

teach the student).

3. Record Of Educational Segregation

Congress was told that “some school systems have unnecessarily isolated and

segregated handicapped children, often in separate schools and facilities.” Spectrum

at 29. While it is possible that some such instances of segregation were entirely

rational, Congress was justified in concluding that segregation of disabled students

often arises from invidious animus. In a recent report to Congress, the National

Council on Disability explained that it has found that

[t]he asserted reasons for segregating children with disabilities in educational settings – that a wheelchair is a fire hazard, that a child’s IQrenders her uneducable, and the like – do not reveal the true basis forexcluding them. The true basis is the expectation that the children willbecome dependent adults, unable to contribute to society. This viewmakes their childhood education seem futile – they will be dependent nomatter how good their education. Compounded by widespreaddiscrimination, inaccessible buildings, inaccessible transportation, andlack of adequate support services, these stereotypes were the reason forseverely restricted options available to children and adults withdisabilities and promoted segregated and inferior education.

National Council on Disability, Back to School on Civil Rights: Advancing the

Federal Commitment to Leave No Child Behind 27 (2000).

These observations were borne out in cases documenting segregation of

disabled children from their classmates for no apparent rational reason.16 Congress

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(11th Cir. 1991) (same); Wilson v. Marana Unified Sch. Dist. No. 6, 735 F.2d1178 (9th Cir. 1984) (student with cerebral palsy sent to segregated school);Johnston v. Ann Arbor Pub. Schs., 569 F. Supp. 1502, 1505-1506 (E.D. Mich.1983) (student with cerebral palsy sent to segregated school).

17 See also TX 1480-1481 (student in wheelchair excluded from all activities inphysical education class, even activities, like throwing a frisbee, she could easilyperform); MO 1014 (high school students with mental disabilities not allowed toattend gym class with other students); OR 1375 (child with cerebral palsy was“given cleaning jobs while other[] [non-disabled students] played sports”); VA1642 (high school student with learning disability labeled “retarded” andforbidden from attending regular community school or taking a drama class,although student already performed in community youth theater); Baird ex rel.Baird v. Rose, 192 F.3d 462 (4th Cir. 1999) (seventh-grader suffering fromclinical depression prohibited from singing in school choir).

was also told that “a great many handicapped children” are denied “recreational,

athletic, and extracurricular activities provided for non-handicapped students.”

Spectrum 29.17

4. Record Of Physical Mistreatment

The record further documents instances of physical mistreatment of students

with disabilities. For example, Congress heard the story of a first grade student who

“was spanked every day” because her deafness prevented her from following spoken

instructions. EHA Senate Hearings 793 (Christine Griffith). The Task Force was

given a newspaper article describing how three elementary schools locked mentally

disabled children in a box for punishment. See NY 1123.

B. Gravity Of Harm Of Disability Discrimination In Public Education

The appropriateness of Section 5 legislation, however, is not purely a product

of the history of discrimination. It is also a function of the “gravity of the harm [the

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law] seeks to prevent.” Lane, 124 S. Ct. at 1988. Even when discrimination in

education does not abridge a fundamental right, the gravity of the harm is enormous.

See, e.g., Brown v. Board of Educ., 347 U.S. 483, 493 (1954).

“[E]ducation is perhaps the most important function of state and local

governments” because “it is doubtful that any child may reasonably be expected to

succeed in life if he is denied the opportunity of an education.” Brown, 347 U.S. at

493. Indeed, “classifications involving the complete denial of education are in a

sense unique, for they strike at the heart of equal protection values by involving the

State in the creation of permanent class distinctions.” Plyler v. Doe, 457 U.S. 202,

234 (1982) (Blackmun, J., concurring).

For both good and ill, “the law can be a teacher.” Garrett, 531 U.S. at 375

(Kennedy, J., concurring). As with race discrimination, few governmental messages

more profoundly affect individuals and their communities than segregation in

education:

Segregation in education impacts on segregation throughout thecommunity. Generations of citizens attend school with no opportunity to be a friend with persons with disabilities, to grow together, to develop an awareness of capabilities * * *[.] Awareness deficits in our young people who become our community leaders and employers perpetuate the discrimination fostered in the segregated educational system.

MO 1007 (Pat Jones). Indeed, discrimination in public schools is particularly harmful

because “[p]ublic education must prepare pupils for citizenship in the Republic” and

must teach “the shared values of a civilized social order.” Bethel Sch. Dist. v.

Fraser, 478 U.S. 675, 681, 683 (1986). Combating discrimination in education thus

prevents the grave harm to constitutional interests that arises from governmental

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18 As in Lane, “the record of constitutional violations in this case * * * far exceedsthe record in Hibbs.” Lane, 124 S. Ct. at 1992. See also id. at 1991 (noting Hibbsrecord contained “little” evidence of “unconstitutional state conduct”); id. at 1992n.17. And the record in the context of education far exceeds the record ofunconstitutional treatment in judicial services. See Lane, 124 S. Ct. at 1990 nn. 9& 14, 1991. In its prior brief, the State challenged the quality and sources of thisevidence, but the Supreme Court relied on precisely the same sources and types ofinformation in reaching its conclusions in Lane. See, e.g., id. at 1990 nn.7-14(relying on statutes and cases post-dating enactment of ADA); id. at 1991 (TaskForce testimony and Breyer appendix in Garrett); id. at 1991 n.16 (conduct oflocal governments); id. at 1992 n.17 (noting Hibbs relied on legislative history topredecessor statute); id. at 1992 (congressional finding of persisting“discrimination” in public services).

action that creates a substantial risk of relegating a class of individuals to society’s

sidelines – unable to participate meaningfully in public or civic life.

Accordingly, the evidence set forth above was more than adequate to support

comprehensive prophylactic and remedial legislation, particularly compared to the

record found sufficient in Nevada Department of Human Resources v. Hibbs, 538

U.S. 721 (2003), and Lane.18

III. As Applied To Discrimination In Education, Title II Is Congruent AndProportional To The Constitutional Rights At Issue And The History OfDiscrimination

“The only question that remains is whether Title II is an appropriate response

to this history and pattern of unequal treatment.” Lane, 124 S. Ct. at 1992. In

deciding that question, the Court in Lane declined to “examine the broad range of

Title II’s applications all at once, and to treat that breadth as the mark of the law’s

invalidity.” Ibid. Instead, the Court concluded that the only question before it was

“whether Congress had the power under § 5 to enforce the constitutional right of

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19 See Elementary and Secondary Education Amendments Act of 1965, Pub. L.No. 89-10, 79 Stat. 27; Elementary and Secondary Education Amendments of1966, Pub. L. No. 89-750, 80 Stat. 1191; Rehabilitation Act of 1973, Pub. L. No.93-112, 87 Stat. 355; Education Amendments of 1974, Pub. L. No. 93-380, 88Stat. 484; Education for All Handicapped Children Act of 1975 (EHA), Pub. L.No. 94-142, 89 Stat. 773; Education of the Handicapped Act Amendments of1983, Pub. L. No. 98-199, 97 Stat. 1357; Carl D. Perkins Vocational EducationAct of 1984, Pub. L. No. 98-524, 98 Stat. 2435; Handicapped Children’s

access to the courts.” Id. at 1993. The question before this Court, then, is whether

Title II is congruent and proportionate legislation as applied to the class of cases

implicating access to education. See ibid.

A statutory remedy is valid under Section 5 where it is “congruent and

proportional to its object of enforcing the right[s]” protected by the statute in the

relevant context. Lane, 124 S. Ct. at 1993. As applied to education, Title II is a

congruent and proportional means of preventing and remedying the unconstitutional

discrimination that Congress found exists both in education and in other areas of

governmental services, many of which implicate fundamental rights.

As was true in Lane with respect to cases implicating access to courts and

judicial services, “Congress’ chosen remedy for the pattern of exclusion and

discrimination described above, Title II’s requirement of program accessibility is

congruent and proportional to its object of enforcing” the rights of disabled persons

seeking access to public schools. 124 S. Ct. at 1993. Further, like Lane, the “unequal

treatment of disabled persons in the administration of” education has a “long history,

and has persisted despite several legislative efforts to remedy the problem of

disability discrimination.” Ibid.19 “Faced with considerable evidence of the

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Protection Act of 1986, Pub. L. No. 99-372, 100 Stat. 796; Education of theHandicapped Act Amendments of 1986, Pub. L. No. 99-457, 100 Stat. 1145;Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq. See alsoHonig v. Doe, 484 U.S. 305, 310 n.1 (1988) (“Congress’ earlier efforts to ensurethat disabled students received adequate public education had failed in partbecause the measures it adopted were largely hortatory.”).

shortcomings of previous legislative responses, Congress was justified in concluding

that this ‘difficult and intractable proble[m]’ warranted ‘added prophylactic measures

in response.’” Ibid.

“The remedy Congress chose is * * * a limited one.” Lane, 124 S. Ct. at 1993.

The Title prohibits only discrimination “by reason of * * * disability,” 42 U.S.C.

12132, so that the States retain their discretion to exclude persons from programs,

services, or benefits for any lawful reason unconnected with their disability or for no

reason at all. Even though it requires States to take some affirmative steps to avoid

discrimination, it “does not require States to compromise their essential eligibility

criteria,” requires only “‘reasonable modifications’ that would not fundamentally alter

the nature of the service provided,” Lane, 124 S. Ct. at 1993, and does not require

States to “undertake measures that would impose an undue financial or administrative

burden * * * or effect a fundamental alteration in the nature of the service,” id. at

1994.

With respect to physical access to facilities, Congress required only

“reasonable measures to remove architectural and other barriers to accessibility.”

Lane, 124 S. Ct. at 1993. Having found that facilities may be made accessible at little

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20 See GAO, Briefing Reports on Costs of Accommodations, Americans withDisabilities Act: Hearing Before the House Comm. on Small Business, 101stCong., 2d Sess. 190 (1990); see also, e.g., S. Rep. No. 116, 101st Cong., 1st Sess.10-12, 89, 92 (1989); H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d Sess. 34 (1990).

additional cost at the time of construction,20 Congress imposed reasonable

architectural standards for new construction and alterations. See 28 C.F.R. 35.151.

At the same time,

in the case of older facilities, for which structural change is likely to bemore difficult, a public entity may comply with Title II by adopting avariety of less costly measures, including relocating services toalternative, accessible sites and assigning aides to assist persons withdisabilities in accessing services. § 35.150(b)(1). Only if these measuresare ineffective in achieving accessibility is the public entity required tomake reasonable structural changes. Ibid. And in no event is the entityrequired to undertake measures that would impose an undue financial oradministrative burden, threaten historic preservation interests, or effect afundamental alteration in the nature of the service. §§ 35.150(a)(2),(a)(3).

Lane, 124 S. Ct. at 1993-1994.

As applied to discrimination in education, these requirements serve a number

of important and valid prophylactic and remedial functions.

In public education, Title II often applies directly to prohibit unconstitutional

discrimination against the disabled, i.e., discrimination which is based on irrational

stereotypes about, or animosity toward, people with disabilities. Indeed, education

is an area where discrimination against the disabled will not infrequently fail rational

basis review. For example, Title II enforces the Equal Protection requirement of

rationality when it applies to prohibit inflicting corporal punishment against a deaf

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21 See Education for All Handicapped Children, 1973-1974: Hearings Before theSubcomm. on the Handicapped of the Senate Comm. on Labor & Public Welfare,93d Cong., 1st Sess. 384, 793 (1973) (Christine Griffith) (first-grade student “wasspanked every day” because her deafness prevented her from followinginstructions).

student for failure to follow spoken instructions,21 or denying a disabled student

admission to a public college because “it would be ‘disgusting’ to [her] roommates

to have to live with a woman with a disability.” WA 1733. Title II further enforces

the constitutional protection against state action based on irrational stereotypes, such

as denying admission to state universities or training programs based on the

assumption that blind people cannot teach in public schools, SD 1476, be competent

rehabilitation counselors, Leg. Hist. 1225, or succeed in a music course, id. at 1224.

Moreover, given the history of unconstitutional treatment of students with

disabilities, Congress was entitled to conclude that there exists a real risk that some

state officials may continue to make decisions about how students with disabilities

should be treated based on invidious class-based stereotypes or animus that would be

difficult to detect or prove. See 42 U.S.C. 12101(a)(7) (congressional finding that

individuals with disabilities “have been faced with restrictions and limitations,

subjected to a history of purposeful unequal treatment, and relegated to a position of

political powerlessness in our society, based on characteristics that are beyond the

control of such individuals and resulting from stereotypic assumptions not truly

indicative of the individual ability of such individuals to participate in, and contribute

to, society.”) In such a situation, the risk of unconstitutional treatment is sufficient

to warrant Title II’s prophylactic response. See Hibbs, 538 U.S. at 722-723, 735-737

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(remedy of requiring “across-the-board” provision of family leave congruent and

proportional to problem of employers relying on gender-based stereotypes).

Title II’s prophylactic remedy acts to detect and prevent difficult-to-uncover

discrimination against disabled students that could otherwise evade judicial remedy.

By proscribing governmental conduct the discriminatory effects of which cannot be

or have not been adequately justified, Title II prevents covert intentional

discrimination against disabled students and provides strong remedies for the

lingering effects of past unconstitutional treatment against the disabled in the

education context. See Lane, 124 S. Ct. at 1986 (“When Congress seeks to remedy or

prevent unconstitutional discrimination, § 5 authorizes it to enact prophylactic

legislation proscribing practices that are discriminatory in effect, if not intent, to carry

out the basic objectives of the Equal Protection Clause.”). Further, by prohibiting

insubstantial reasons for denying accommodations to the disabled, Title II prevents

invidious discrimination and unconstitutional treatment in the day-to-day actions of

state officials exercising discretionary powers over disabled students. See Hibbs, 538

U.S. at 736 (Congress justified in concluding that perceptions based on stereotypes

“lead to subtle discrimination that may be difficult to detect on a case-by-case

basis.”). Moreover, in requiring reasonable steps to permit physical access to existing

school buildings and to design new school buildings with the needs of individuals

with disabilities in mind, Title II responds to the lingering effects of a long history of

exclusion of people with disabilities from schools.

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22 See, e.g., Brown, 347 U.S. at 493; Mississippi University for Women v. Hogan,458 U.S. 718, 729-730 (1982).

23 See also South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966); Katzenbachv. Morgan, 384 U.S. 641 (1966); Oregon v. Mitchell, 400 U.S. 112 (1970).

As has long been recognized in the areas of race and gender discrimination,22

eliminating discrimination and segregation in education is critical to remedy and

prevent discrimination in access to public services and public life generally. “A

proper remedy for an unconstitutional exclusion * * * aims to eliminate so far as

possible the discriminatory effects of the past and to bar like discrimination in the

future.” United States v. Virginia, 518 U.S. 515, 547 (1996). As the Supreme

Court’s cases upholding congressional bans on literacy tests as proper remedial and

prophylactic legislation recognize, discrimination and segregation in education have

enduring effects that reach beyond the educational context and affect individuals’

ability to exercise and enjoy the most basic rights and responsibilities of citizenship,

including voting, access to public officials, and equal opportunities to participate in

public programs and services. Title II’s application to education is thus congruent

and proportional because a simple ban on discrimination would have frozen in place

the effects of States’ prior official exclusion and isolation of individuals with

disabilities, which had the effect of rendering the disabled invisible to government

officials and planners, thereby creating a self-perpetuating spiral of segregation,

stigma, and neglect. See Gaston County, 395 U.S. 285, 289-290 (1969)

(constitutionally administered literacy test banned because it perpetuates the effects

of past discrimination).23

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By reducing stereotypes and misconceptions, integration in education also

reduces the likelihood that constitutional violations in other areas implicating

fundamental rights will recur. Cf. Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581,

600 (1999) (segregation “perpetuates unwarranted assumptions that persons so

isolated are incapable or unworthy of participating in community life”). For instance,

requiring physical accessibility of schools serves the broader purpose of protecting

access to other government services that are often conducted in schools. Congress

could reasonably determine that making school buildings reasonably accessible

would have the prophylactic effect of avoiding unconstitutional denials of the right

to vote, to participate in government board meetings, or gain access to other

government services implicating fundamental rights, when these activities take place

in local schools.

Further, the exclusion of individuals with disabilities from public education

was a critical component of the historic eugenics movement, which sought to

eliminate and completely exclude individuals with disabilities from public life

through systematic, government-endorsed programs of forced institutionalization and

sterilization. Indeed, Congress and the Supreme Court have long acknowledged the

Nation’s “history of unfair and often grotesque mistreatment’” of persons with

disabilities. Cleburne, 473 U.S. at 454 (Stevens, J., concurring); see also Olmstead,

527 U.S. at 608 (1999) (Kennedy, J., concurring) (“[O]f course, persons with mental

disabilities have been subject to historic mistreatment, indifference, and hostility.”);

Cleburne, 473 U.S. at 446 (“Doubtless, there have been and there will continue to be

instances of discrimination against the retarded that are in fact invidious.”);

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Alexander v. Choate, 469 U.S. 287, 295 n.12 (1985) (“well-cataloged instances of

invidious discrimination against the handicapped do exist”). From the 1920s to the

1960s, the eugenics movement labeled persons with mental and physical disabilities

as “sub-human creatures” and “waste products” responsible for poverty and crime.

Spectrum at 18 n.5; id. at 20. Every single State, by law, provided for the segregation

of persons with mental disabilities and, frequently, epilepsy. A critical component

of that program of official segregation and isolation was the exclusion of the disabled

from public schools, as well as from other state services and privileges of citizenship.

Children with mental disabilities “were excluded completely from any form of public

education.” Rowley, 458 U.S. at 191; see also State v. Board of Educ., 172 N.W. 153,

153 (Wis. 1919) (approving exclusion of a boy with cerebral palsy from public school

because he “produces a depressing and nauseating effect upon the teachers and school

children”) (noted at Leg. Hist. 2243); see generally T. Cook, The Americans with

Disabilities Act: The Move to Integration, 64 Temple L. Rev. 393, 399-407 (1991).

Title II’s application to education thus targets a constitutional problem that is

greater than the sum of its parts. Comprehensively protecting the rights of individuals

with disabilities in the educational context directly remedies and prospectively

prevents the persistent imposition of inequalities on a single class, Lane, 124 S. Ct. at

1988-1992, and the chronic distribution of benefits and services, whether through

legislation or executive action, in a way that “impos[es] special disabilities upon

groups disfavored by virtue of circumstances beyond their control.” Plyler, 457 U.S.

at 217 n.14. Title II’s application to education thus combats and overcomes a historic

and enduring problem of broad-based unconstitutional treatment of the disabled,

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including programmatic exclusions from public life and education that sought to

accomplish the very “kind of ‘class or caste’ treatment that the Fourteenth

Amendment was designed to abolish,” ibid.

CONCLUSION

The Eleventh Amendment is no bar to plaintiffs’ claims under Title II of the

Americans with Disabilities Act.

Respectfully submitted,

R. ALEXANDER ACOSTA Assistant Attorney General

________________________ JESSICA DUNSAY SILVERSARAH E. HARRINGTON Attorneys Department of Justice Civil Rights Division Appellate Section - PHB 5020 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 305-7999

CERTIFICATE OF COMPLIANCE

I hereby certify that pursuant to the Court’s supplemental order of June 7,

2004, the attached Corrected Supplemental Brief for the United States as

Intervenor is proportionally spaced, has a typeface of 14 points, and is not longer

than 30 pages.

________________________SARAH E. HARRINGTON Attorney

Date: July 21, 2004

CERTIFICATE OF SERVICE

I certify that two copies of the foregoing Corrected Supplemental Brief for

the United States as Intervenor were served by overnight mail, postage prepaid, on

July 21, 2004, to the following counsel of record:

William Nicholas CharouhisWilliam N. Charouhis & AssociatesAlfred I. Dupont Building169 E Flagler Street, Suite 1200Miami, FL 33131

Sherril May ColomboShook, Hardy & Bacon LLP201 S. Biscayne BoulevardSuite 2400Miami, FL 33131

Lawrence J. Bracken, IIW. Christopher ArberyHunton & Williams600 Peachtree St. NW, Suite 4100Atlanta, GA 30308-2216

David E. LangfordState of Georgia Dept. of Law40 Capitol Square, SWAtlanta, GA 30334

________________________SARAH E. HARRINGTON Attorney